Mali et al v. Federal Ins Co
ORDER denying 180 Motion for Sanctions. Signed by Judge Ellen Bree Burns on 7/7/2011. (Dodge, D.)
United States District Court
District of Connecticut
THE ESTATE OF FREDERICK MALI and
FEDERAL INSURANCE COMPANY
No. 3:06-CV-01475 (EBB)
RULING ON DEFENDANT’S MOTION FOR SANCTIONS
The present litigation stems from an insurance dispute
between the Plaintiffs-insured, Lucretia Mali and the estate of
her late husband, and the Defendant-insurer, Federal Insurance
The Defendant has filed a motion, pursuant to Rule 11
of the Federal Rules of Procedure, for sanctions.
The issue of
sanctions is currently scheduled for a hearing on July 12, 2011,
the same day as jury selection.
Upon further review of the
parties‟ pleadings, however, it is the determination of the
Court that a hearing is unnecessary because the Defendant has
failed to comply with the procedural requirements of Rule 11.
For the foregoing reasons, the Defendant‟s motion is DENIED.
For the purposes of this ruling, familiarity with the facts
and procedural background of the case is assumed.
At one time
the Plaintiffs‟ property was serviced by a company named
During discovery, the Plaintiffs subpoenaed and
deposed a corporate designee of Patterson Oil.
concluded on March 1, 2009, and this matter proceeded toward
On January 10, 2011, Plaintiffs issued a subpoena
directed at Patterson Oil calling for an oral deposition of
Patterson Oil‟s corporate designee and the production of certain
The Defendant objected and moved to quash the
In support of the subpoena, Jamie Brickell, who is counsel
for the Plaintiffs, filed an affidavit representing that
Lucretia Mali had phoned him on December 15, 2010.
Brickell, Mali informed him that she had received notice from
Patterson Oil that it was “terminating all service” to the
Brickell stated that Mali told him “a senior
executive at Patterson [Oil]” had told her “that her account was
being terminated because of recent statements made to Patterson
by a representative of Federal Insurance Company.”
claimed that the only way to obtain more facts about the
incident would be to take a brief deposition of a representative
of Patterson Oil.
The Court denied the Defendant‟s motion to quash, and
granted the Plaintiffs leave to take the deposition for the
limited purpose of questioning Patterson regarding the
termination of service at the Plaintiffs‟ property.
On February 16, 2011, Barry Patterson, the president of
Patterson Oil, was deposed at the law offices of defense counsel
in West Hartford.
The deposition was contentious, with the
defense counsel frequently interrupting plaintiffs‟ counsel by
demanding that he not deviate from the limited purpose for which
the plaintiffs were granted leave to take the deposition.
Patterson testified that he has not had a service contract with
Mali for over five years, and that it was in fact the Malis who
terminated Patterson Oil‟s service, not the other way around.
He further testified that Lucretia Mali contacted him recently
seeking to resume service to the property.
He claimed, however,
that he refused to take her on as a customer because he was
displeased that he is involved in the parties‟ lawsuit and he
felt she was trying to “trap” him.
represented that the Defendant had not contacted him with regard
to oil service to the property.
On March 9, 2011, the Defendant filed a motion to impose
sanctions against Mali and her attorneys in connection with the
subpoena and the affidavit filed in support of it.
Specifically, the Defendant requested that Mali and her
attorneys be required to reimburse Federal for the attorneys‟
fees and costs incurred in connection with the subpoena and the
second deposition of Patterson. The Defendant did not separately
serve either Mali or plaintiffs‟ counsel with a copy of the
motion 21 days prior to filing with the court, as Rule 11
Rule 11 (b) (3) provides the following, in relevant part:
By presenting to the court a pleading, written motion, or
other paper – whether by signing, filing, submitting or
later advocating it – an attorney or unrepresented party
certifies that to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable
under the circumstances. . . . the factual contentions
have evidentiary support or, if specifically so identified,
will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery.
The rule goes on to provide courts with a variety of
possible sanctions to impose for violations, such as striking
the offending paper, issuing an admonition, reprimand, or
censure; requiring participation in seminars or other
educational programs, ordering a financial penalty; or referring
the matter to disciplinary authorities.
Here, the Defendant contends that the declaration of
attorney Brickell, discussed supra, was “based on false
statements of fact” intended to mislead the Court and the
As such, the Defendant seeks remuneration for costs
associated with taking the deposition.
The Court, however, has no occasion to review the merits of
the Defendant‟s claim because the Defendant has not complied
with the “safe harbor” provision of Rule 11.
The safe harbor
provision provides that a motion for sanctions is not to be
filed until at least 21 days after being served upon the
As the committee notes explain, “if, during
this period, the alleged violation is corrected . . . the motion
should not be filed with the court.
These provisions are
intended to provide a type of „safe harbor‟ against motions
under Rule 11 in that a party will not be subject to sanctions
on the basis of another party‟s motion unless, after receiving
the motion, it refuses to withdraw that position or to
acknowledge candidly that it does not have evidence to support a
specific allegation.“ The safe harbor provision was added to
Rule 11 in 1993 because, under former iterations of the rule,
“parties were sometimes reluctant to abandon a questionable
contention lest that be viewed as evidence of a violation of
Rule 11; under the revision, the timely withdrawal of a
contention will protect a party against sanctions.”
The inclusion of the safe harbor provision evinces a clear
preference for non-judicial resolutions of this type of issue.
Moreover, service upon the opposing party 21 days prior to
filing a Rule 11 motion with the Court is the bare minimum that
is required of a party seeking sanctions; the committee notes
advise that “counsel should be expected to give informal notice
to the other party, whether in person or by a telephone call or
letter, of a potential violation before proceeding to prepare
and serve a Rule 11 motion.”
The safe harbor provision serves
the interests of judicial economy, as well as collegiality and
In keeping with these considerations, the Second
Circuit Court of Appeals has held that a district court is
required to deny a motion for sanctions for failure to comply
with the 21-day safe harbor in order to afford that party an
opportunity to correct allegedly sanctionable behavior.
v. Yonkers Racing Corp., 48 F.3d 1320, 1328 (2d Cir. 1995).
The Defendant argues that its noncompliance with the safe
harbor provisions is of no consequence because “this is not the
type of case where the „problem may be corrected‟ between the
service and filing of a motion for sanctions.”
contradictory to this statement, the Defendant goes on to state
that “unless Plaintiffs were willing to voluntarily reimburse
Federal for the costs and fees associated with the frivolous
subpoena and deposition (which they clearly were not), there is
simply no way they could have corrected the „problem‟ created by
to the Court.”
Thus, by the
Defendant‟s own logic, the problem could have been solved.
instead of giving the Plaintiffs the opportunity to correct the
alleged problem, the Defendant‟s operated on the presumption
that the Plaintiffs would be unwilling to reach an
The Defendant now asks the Court to take the
Plaintiffs‟ opposition to a motion for sanctions as proof that
this presumption was correct.
The Court cannot accept the Plaintiffs‟ opposition to a
motion for sanctions that has now been filed with the Court as
evidence of unwillingness to correct the alleged problem had the
motion never been filed.
Unfortunately, it is unknowable
whether the Plaintiffs, confronted with the Defendant‟s claims,
informally or at least prior to the filing of a Rule 11 motion
with the Court, might have offered the Defendant remuneration
for the costs of the deposition or other consideration.
Defendant denied the Plaintiffs that opportunity when it took
the drastic and procedurally improper step of filing its motion
for sanctions immediately with the Court.1
The Court is aware that at various times the parties have
had a rancorous relationship with one another.
As this matter
proceeds to trial in the upcoming week, the Court would advise
the attorneys for both parties that, going forward, perceived
past slights, grudges or grievances will not be accepted as an
excuse for a lack of civility, decorum or professionalism.
the future, if either party feels that its opponent has engaged
in conduct that calls for sanctions or warrants some type of
financial remuneration or apology, such party would be well
advised to act in conformity with the procedural prerequisites
of Rule 11 prior to involving the Court in such a dispute.
Similarly, it should be noted that the Plaintiffs‟ lack of
an opportunity to withdraw the offending paper, in this case
Brickell‟s affidavit, is also fatal to the Defendant‟s motion.
This is because “[t]he 21-day, safe-harbor service requirement
controls not only the earliest date on which a motion may be
filed ..., it also indirectly controls the last date on which a
Rule 11 sanctions motion may be filed.” In re Pennie & Edmonds
LLP, 323 F.3d 86, 87 fn.2 (2d Cir. 2003). Thus, a party must
serve its Rule 11 motion before the court has ruled on the
pleading; the motion is untimely if filed too late to permit
correction or withdrawal. Id. Otherwise, the purpose of the
safe harbor provision would be “nullified.” Id.
In the present case, the Court ruled on the “pleading” when
it granted the Plaintiffs leave to take the deposition of
Patterson Oil. Thus, because the motion was filed after the
Court granted leave to take the deposition and after the
deposition itself had been taken, the Plaintiffs had no
opportunity to withdraw the offending paper and the Defendant‟s
Rule 11 motion is untimely.
SO ORDERED this 7th day of July, 2011 at New Haven, Connecticut.
ELLEN BREE BURNS, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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